Legislation

Kirsten Carlson on Congress, Tribal Recognition, and Legislative-Administrative Multiplicity

Matthew L.M. Fletcher

Kirsten Matoy Carlson has posted her paper, “Congress, Tribal Recognition, and Legislative-Administrative Multiplicity,” on SSRN.

Here is the abstract:

For over thirty years, tribal leaders, state officials, members of Congress, and scholars have decried the process by which the United States recognizes Indian tribes. Most accounts have focused exclusively on the administrative process, omitting Congress from their analyses and suggesting that Congress plays a minor role in tribal recognition. The widely-accepted proposition that Congress has relinquished control over recognition is a testable hypothesis. This article tests this proposition empirically. The results call into question the dominant narrative about the congressional role in federal recognition and show that it is just plain wrong. In addition to debunking prevailing misconceptions, the data exposes an intriguing puzzle — a more complicated tale of legislative-administrative multiplicity. Federal recognition is not a uniform administrative process. Instead, parallel legislative and administrative processes exist and often intersect in complex ways. This discovery is an important first step towards understanding these dual processes and their implications for federal Indian law and understandings of legislative-administrative relationships more generally.

Highly recommended.

 

Iowa Legislature Passes Resolution Requesting Congress to Repeal 1948 Statute Authorizing Iowa to Assert Jurisdiction over Meskwaki Settlement

Matthew L.M. Fletcher

Here are the materials:

Iowa Senate Resolution passed requesting Repeal of 1948 Law

IA Sen. Steve Sodders remarks supporting repeal of 1948 Law

Department of Justice Proposes Legislation to Empower Tribal Governments in Selecting Polling Places

Matthew L.M. Fletcher

Today the Department of Justice proposed legislation that would require states or localities whose territory includes part or all of an Indian reservation, an Alaska Native village, or other tribal lands to locate at least one polling place in a venue selected by the tribal government.  “The Department of Justice is deeply committed to ensuring that every eligible individual is able to exercise his or her fundamental right to vote,” said Attorney General Loretta E. Lynch. “That’s why, today, I am calling on Congress to help remove the significant and unnecessary barriers that for too long have confronted American Indians and Alaska Natives attempting to cast their ballots. The legislation we recommend today will make this nation stronger by extending meaningful voting opportunities to native populations, by encouraging full participation in our democratic institutions, and by bringing us closer to our most cherished ideals.”

“As citizens of a nation founded upon the principles of liberty and equality, Native Americans have faced unacceptable barriers to participating in the franchise, a situation aggravated by a history of discrimination, poverty and — significantly — great distances from polling places,” said Acting Associate Attorney General Stuart Delery. “In spite of many reforms made possible by the Voting Rights Act and other measures, voting rates among Native Americans remain disproportionately low. The legislation proposed today would address this unacceptable gap and we look forward to working with Congress to see it enacted.”

American Indians and Alaska Natives have faced significant obstacles that have prevented them from enjoying equal access to polling places and equal opportunities to cast a ballot. In addition to suffering from a long history of discrimination, the distance many American Indian and Alaska Native citizens must travel to reach a polling place presents a substantial and ongoing barrier to full voter participation. Following formal consultations with Indian tribes, the Department of Justice believes that there is a pressing need for federal legislation to ensure equal access to voting by Native American voters.

Today, the Department of Justice sent a letter to Congress with a legislative proposal, which would ensure that American Indian and Alaska Natives have access to at least one polling place in their communities to cast their ballots and require a number of additional obligations to ensure parity with other polling places.

This legislative proposal, a stand-alone bill, would:                           

Enable Native Americans to vote on or near tribal lands, by requiring any state or local election administrator whose territory includes part or all of an Indian reservation, an Alaska Native village, or other tribal lands to locate at least one polling place in a venue selected, and made available for the purpose of conducting elections, by the tribal government.

 

Require states to make voting machines, ballots, and other voting materials and equipment available at these tribally located polling places to the same extent that they are available at other polling places in the state.

 

Require states to provide compensation and other benefits to election officials and poll workers at these polling places to the same extent as at other polling places in the state.

 

Require states to use the same voting procedures at these polling places as at other polling places in the state — potentially including election-day voting, early voting, the hours during which polling places are open, the operation of voting mechanisms or systems, and same-day registration.

 

Allow states to meet their obligations by either creating new polling places or relocating existing ones.

 

Allow tribes with larger populations or land bases to request more than one polling place.

 

Make the states’ obligations contingent on the tribe filing a timely request and certifying that it has arranged for access to, and appropriate staffing for, the polling facility.

 

Require the tribe to ensure that the staffers for the polling place are properly trained.

 

Require the tribe to ensure that the polling place will be open and accessible to all eligible citizens who reside in the precinct, regardless of whether they are Indians or non-Indians.

The Department of Justice is committed to ensuring equal access to voting for Native American voters. This proposal would address serious voting obstacles faced by citizens who are members of Indian tribes and Alaska Native villages; provide equal access to polling places for all eligible citizens, including members of tribes and villages; reinforce our nation’s commitment to the fundamental right to vote; and strengthen the government-to-government relationship between the United States and tribal nations.  

In 1975, recognizing the barriers to full participation that Native Americans continued to confront, Congress expressly included American Indians and Alaska Natives as protected groups under the special provisions of the Voting Rights Act. Sections 4 and 5 of the Voting Rights Act prohibited many jurisdictions with large American Indian or Alaska Native populations from changing their voting laws until they could prove that the change would not create new barriers to effective participation. A number of jurisdictions with large Native American populations that have limited English proficiency — in six states, including Alaska — are also covered by Section 203 of the Voting Rights Act, which requires bilingual election materials and assistance.

 

Despite these reforms, participation rates among American Indians and Alaska Natives continue to lag behind turnout rates among non-Native voters. For example, in Alaska, turnout among Alaska Natives often falls 15 to 20 or more percentage points below the non-Native turnout rate. The causes of these disparities are complex, but the reality is that political participation by Native Americans consistently trails that of non-Natives and unequal access to polling places is a significant contributing factor.   

 

Review the legislation at http://www.justice.gov/tribal/department-justice-proposes-legislation-improve-access-voting-american-indians-and-alaska.

 

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Text of CARERS Act Bill

Matthew L.M. Fletcher

Here:

CARERS Act

Maine Tribes seek authority to exercise VAWA ’13 jurisdiction

Ann Tweedy

Because of the Maine Settlement Act of 1980, state law would have to change to facilitate tribal authority, and a bill has been introduced. Here’s the news article.

Gun Lake Trust Land Reaffirmation Act Signed

Matthew L.M. Fletcher3 Comments

Here are materials from the tribe:

PR New Federal Law Ends Patchak Lawsuit 9.29.14

Bills+Release+9.26.14

GL Trust Land Reaffirmation Act

New Scholarship on Impacts of Excepting Alaska Natives from Federal Indian Law

Matthew L.M. Fletcher

Here is Samuel Gottstein’s “An Era Of Continued Neglect: Assessing the Impact of Congressional Exemptions for Alaska Natives,” published in the Boston College Law Review.

The abstract:

Although Native Americans in the contiguous United States have benefited from recent congressional reforms, Alaska Native communities were largely ignored. Despite the widely acknowledged crisis of sexual assault and domestic violence in rural Alaska Native communities, Congress has explicitly exempted Alaska from legislation that would otherwise give people in these communities the ability to protect themselves. Although public outcry has prompted pending legislation in Congress to repeal some of these exemptions, such as the Alaska Safe Families and Villages Act, even that legislation does not go far enough to achieve a permanent and effective solution to what is a life-or-death problem for many Alaska Natives. This Note argues that Congress and the State of Alaska should expand Alaska Native tribal sovereignty to give Alaska Native communities the ability to stem the tide of this epidemic.

Gun Lake Trust Land Reaffirmation Act Passed by Congress

Matthew L.M. Fletcher

House vote was yesterday.

S. 1603 here.

Committee Reports: S. Rept. 113-194; H. Rept. 113-590

Ho Chunk job posting for legislative attorney

Ann Tweedy

This just in from Ho Chunk: jobpostingreport_8-20-14 atty.

California Legislature Enacts Tribal Court Civil Money Judgment Act

Matthew L.M. Fletcher

Here:

SB-104 CA Tribal Court Civil Money Judgement Act 08-22-2014

From the digest:

The existing Uniform Foreign-Country Money Judgments Recognition Act provides that foreign judgments that grant or deny recovery of a sum of money and that are final and conclusive are enforceable in California, with specified exceptions. The act includes within the definition of “foreign-country judgment” a judgment by any Indian tribe recognized by the government of the United States.

This bill would, until January 1, 2018, exempt Indian tribal judgments from the Uniform Foreign-Country Money Judgments Recognition Act, and would instead enact the Tribal Court Civil Money Judgment Act. The new act would likewise provide for the enforceability of tribal court money judgments in California, except as specified. The act would prescribe the procedure for applying for recognition and entry of a judgment based on a tribal court money judgment, the procedure and grounds for objecting to the entry of judgment, and the bases upon which the court may refuse to enter the judgment or grant a stay of enforcement. The bill would require the Judicial Council to prescribe a form for the notice of filing the application for recognition of the tribal court money judgment, as specified. The bill would require that this application be executed under penalty of perjury, which would expand the scope of the crime of perjury and thus impose a state-mandated local program. The bill would require the California Law Revision Commission to conduct a study of the standards for recognition of a tribal court or a foreign court judgment under the Tribal Court Civil Money Judgment Act and the Uniform Foreign-Country Money Judgments Recognition Act, and submit a report of its findings and recommendations to the Legislature and the Governor no later than January 1, 2017.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for
a specified reason.